R v King [2007] VSCA 38

2 Following a trial in the County Court at Melbourne the appellant was found guilty on one count of false imprisonment, one count of making a threat to kill, two counts of intentionally causing injury, one count of indecent assault and one count of making a threat to cause serious injury. On 12 May 2006, after hearing a plea in mitigation, the sentencing judge imposed the following sentences:

Count 1 - False imprisonment - 3 years and 6 months

Count 2 - Making a threat to kill 18 months - 3 months cumulative

Count 3 - Intentionally causing injury 9 months - 3 months cumulative

Count 4 - Indecent assault 18 months - 6 months cumulative

Count 5 - Making a threat to cause serious injury 12 months - 3 months cumulative

Count 7 - Intentionally causing injury 12 months - 3 months cumulative.

The total effective sentence was therefore one of five years' imprisonment. Her Honour ordered that the appellant serve 3 years and 4 months before becoming eligible for parole. The appellant was granted leave to appeal against the sentences imposed.

3 The appeal was conducted on the basis that the appellant committed a continuing offence constituted by the count of false imprisonment during which time he committed other offences (constituting the other counts) and made other threats and committed other acts of violence, which may be referred to as "uncharged acts". The primary argument advanced on this appeal arose out of the interrelationship between the multiple counts on the presentment, and between those counts and the uncharged acts. To consider the principal submission it is convenient to consider grounds 2 and 3 together. They are in these terms:

"2. The learned sentencing judge erred by failing to properly take into account the evidence of uncharged acts when imposing sentence.

3. The learned sentencing judge erred by doubly punishing the appellant."

4 Before addressing the primary submission advanced on the appellant's behalf some examination of the circumstances of the appellant's offending is required. It is convenient that I adopt the learned sentencing judge's very helpful summary of the facts. The grounds of appeal and counsel's submissions would also be better understood if reference can be made to the manner in which her Honour dealt with the facts.

"You and the complainant in this matter, LEA, had previously been involved in a long-term romantic relationship. She had known you since she was in Year 11 in 1996. You started socialising together as a couple at about that time. You remained in a relationship for about three years. The relationship was brought to an end by Ms A. You remained apart for approximately three years and you reconciled in approximately 2002. On this occasion, you stayed together for about a year, and then a few weeks prior to the matters the subject of the charges on the presentment, your relationship again came to an end, at the instigation of Ms A.

On 9 July 2003, pursuant to an arrangement made by you, Ms A went to visit you at your home at Unit 6, 387 Lygon Street, Brunswick. You telephoned her in the morning to confirm the arrangement. She came to your house to collect a lamp and stereo unit she had left at your place and also to discuss whether or not you would continue to see each other as friends. She arrived at your home at about 12:45 pm. The two of you had a brief conversation about your relationship and whether you were going to remain friends. You wanted a total reconciliation, but Ms A was opposed to the idea. You wanted her to live with you at some point in the future, but again Ms A was opposed to the idea. She told you that she had not attended your premises in order to discuss a reconciliation, and the only thoughts she had about the future of your relationship concerned whether you could continue to be friends or not.

Ms A unplugged her lamp and asked you to unplug her stereo unit so that she could put them in the car, but you became agitated. The two of you then went to a café, and whilst there you again had a conversation about your relationship. You asked Ms A whether or not she had been with anyone else and whether or not she had anything to tell you. She understood this to mean whether or not she had been with another person. She told you that she did not know what you were talking about, and you confronted her with the suggestion that she had been with another man the previous Wednesday. You said that you had evidence to prove that she had been with a man named 'Chris'. You became agitated and accused her of trying to hide the activities in which you believed she was involved.

Count 1 - False Imprisonment: After you left the café together, you both returned to your home. You initially went into the lounge room but shortly thereafter you told Ms A to go upstairs. As she started walking up the stairs, she heard what sounded like the door click. She thought that you locked the door. She asked you, 'Did you lock the door? Why did you do that?' You denied that you had locked the door, saying it was already locked. Ms A then told you she did not want to go upstairs, but you told her she was being silly. You then both went upstairs.

Your premises comprised of two-storey accommodation. On the lower level were the lounge, kitchen and meals area. On the upper level were your bedroom and a second bedroom used by Frank Nikolosi. There was also a bathroom upstairs. When you got upstairs, you both went into your bedroom. You sat on the bed, and again you raised the topic as to whether Ms A had seen anybody else and whether there was anything she needed to tell you. She told you that nothing was going on, that she had done nothing and that she did not know what you were talking about. As you persisted with this line of questioning, she became agitated and told you that she did not have any answers to give you in relation to your questions. She repeated she had not done anything and she had not been with anyone else. While this conversation was going on, you picked up a flick knife that was sitting on the bedside table beside you and started playing with it, apparently cleaning your nails. This made Ms A upset and she asked, 'What are you doing with the knife? Are you trying to scare me or upset me?' You responded, 'No, I'm just cleaning my nails.' At that point, Ms A decided to leave. She stood up and told you that she wanted to go. As she started to walk out of the bedroom, you threw the knife on the bed, and Ms A, seeing that, became concerned and grabbed the knife so as to have control of it, as she was unsure as to your intentions. She attempted to close the knife, but not knowing how it worked, she fumbled with it. She continued to try and close the knife as she was walking out of the bedroom. You became agitated with her and followed her, ordering her to return the knife to you. Ms A refused to return the knife to you and kept trying to close it. She became frightened and started to run down the stairs. As Ms A got halfway down the stairs, you grabbed her arm. She still had the knife and pointed it at you and warned you not to touch her or she would do something with the knife.

She was able to break free and kept going down the stairs. You pursued her and reached the front door before she was able to get to it. You prevented her from leaving. She then threatened to stab herself if you came any closer. You then went to the kitchen and returned with a kitchen knife. While you were doing this, Ms A fumbled with the two locks at the front door. She was unable to escape before you returned with the knife. You pointed the kitchen knife at her and threatened her with the knife. As a result of this, Ms A returned the flick knife to you. You closed the flick knife and put it in your pocket. Soon after you both returned upstairs and went into your bedroom. You became angry at Ms A. You yelled at her and pushed her onto the bed. Again you confronted her with suggestions that she had slept with another man. You repeatedly used words, 'What have you done? Why won't you tell me the truth?' and words to that effect. Thereafter you commenced a campaign of physical violence against Ms A. You threatened to kill her, telling her that you wanted to choke her. On numerous occasions you placed your hands around her throat and commenced to choke her. On a number of occasions she was unable to breathe. Over the course of approximately two hours, you made a number of threats to kill her, one of which is the subject of Count 2 on the presentment. You perpetrated a number of serious assaults upon her, one of which was the subject of Count 3, and one of which is the subject of Count 7. You intimidated her and, for a period of time, restrained her by placing her hands in handcuffs behind her back. Fortunately Ms A was eventually able to escape when you were both downstairs while you were preparing a bong. She ran out of the house and across the street and you gave chase. Ms A was able to gain assistance and hid in a shop until the Police arrived.

Count 2 - Threat to Kill: As I said earlier, whilst falsely imprisoned by you, you made a number of threats to kill LA. The threat the subject of Count 2 occurred after you had brought out the kitchen knife and ordered Ms A to go back upstairs. You had pushed her on the bed, you had already accused her of cheating on you, you were angry, you jumped on top of her, put your hands on her shoulders and had started to choke her. She said, in her evidence:

'I can't remember the exact sequence because it went on for a while, but while we were in the bedroom there was just a long period of time that we were in there where I was just getting pushed and shoved and strangled and choked, and that, so I couldn't tell you second for second where I ended up, but it went on for a period of time where it was just a matter of him just doing what he wanted to me and trying to choke me . . .

He just kept telling me how much he wanted to kill me and that I was not going to be leaving this place, that I am a liar and a bitch and just 'this is not going to end here and if you don't tell me the truth you're going to die. I'm going to kill you.' He kept wanting me to tell him what happened - whether I had been with someone - and I kept saying, 'I have not done anything. I don't know what you're talking about. I can't give you any more answers than what I have said already' and he kept yelling at me, telling me that I am lying and that I have done something, and if I don't tell him the truth, I'm going to die."

This threat was a particularly serious threat, given the contextual setting. You had not only detained Ms A against her will, but you had already committed violent acts against her, including attempting to choke her. You had the apparent means to carry out your threat. This must have been a terrifying experience for Ms A.

Count 3 - Intentionally Cause Injury - Bite to Hand: At one point while you were both in the bedroom and Ms A was struggling with you, you were attempting to choke her. She put her hand up and was trying to fight you off. As she did that, you bit the palm of her hand. Although you denied the circumstances in which the bite occurred, you admitted in your sworn evidence before the jury that you intentionally bit Ms A's hand and that you bit it hard and for a period of time. As a result, Ms A received a bruise in that area. The injury is depicted in Photographs 21 and 22 of Exhibit J.

Counts 4 and 5 - Indecent Assault and Threat to Inflict Serious Injury: Whilst in the bedroom, you shoved a sock in Ms A's mouth. She was sitting on the bed with her hands restrained behind her in handcuffs. She spat the sock out and then you pulled out the flick knife. You opened it and held it towards her. She began screaming. You again attempted to place the sock in her mouth, but she was able to resist your efforts. Ms A's evidence was as follows:

'He pulled my top down and pulled out my right boob out of my bra and told me he was going to cut my nipple off so that I would be ugly and disgusting towards other people, and he had it in his hand while he had the knife at my boob and he was poking at it with the knife.'

Ms A was very frightened and attempted to fight you off. As a result of your indecent assault, Ms A was injured. In his evidence, Dr Darwood referred to these injuries, which are also depicted in Photographs 37 and 38 of Exhibit J. Those photographs show that you caused a red bruise on the right breast to the inner side toward the breastbone. The bruise was approximately 3-centimetres in diameter.

The circumstances of Counts 4 and 5 are also particularly serious. The indecent assault involved considerable force and the use of a weapon. The threat to inflict serious injury was accompanied with the apparent means to carry out the threat there and then. Ms A was very frightened by your conduct and threat.

Count 7 - Intentionally Cause Injury - Head Pushed onto Bathroom Sink: At one point you left the bedroom and went into the bathroom. Ms A was confused at that time. She walked out of the bedroom and you said to her; 'You might as well just go.' She asked you, 'Does that mean I can just leave?' and you said, 'Is that all you care about'? You then said, 'You're not leaving'. You then grabbed her, pulled her into the bathroom and pushed her head forcefully into the sink."

5 The learned sentencing judge regarded the offence of false imprisonment as a very serious one. Her Honour described the aggravating features of the false imprisonment as including its duration and "the repeated acts of violence, intimidation, threats, use of weapons and physical restraints." Her Honour referred to the complainant's ongoing and increasing fear that the appellant would kill her. Immediately prior to the complainant's escape the appellant made clear to her that he had not finished torturing her and that it was going to go on for a long time.

6 It was not in issue on the appeal that the sentencing judge was entitled to have regard to the nature and quality of the acts both charged and uncharged which occurred during the false imprisonment and to treat those matters as circumstances of aggravation.[1] The contention advanced on the appellant's behalf was that his culpability in relation to the other counts having already been taken into account in sentencing him on the count of false imprisonment, her Honour had failed to moderate the sentences in relation to those other counts, and as a consequence the appellant had been exposed to double punishment. Mr Papas, who appeared for the appellant, was driven to submit that the sentence imposed on the count of false imprisonment could only be justified if the appellant's culpability in relation to the other counts formed part of that sentence. That is to say, he contended that the sentence imposed on the count of false imprisonment would otherwise be manifestly excessive if it was not intended to include the other offending conduct the subject of the other counts. In addition, it was submitted that as the uncharged acts had been taken into account as circumstances of aggravation on the count of false imprisonment, her Honour had doubly punished the appellant on the other counts by treating the uncharged acts as aggravating the seriousness of those other counts as well.

7 Where a number of serious offences are committed in the course of a single incident, a separate count should generally be laid for each offence if such conduct is to be taken into account.[2] It is not required that the sentences imposed on each of those offences be made wholly concurrent. Whether the sentencing judge should make orders for cumulation will depend upon the circumstances of each case. The decision in R v O'Rourke[3] illustrates the point. But where a number of counts are laid in relation to offences committed in the course of a single incident, care is required both in fixing the sentences and in making any order for cumulation[4] to ensure that the accused is not subjected to double punishment.[5] The sentencing judge must separate the bases of punishment in situations where a number of offences are committed within the ambit of a single incident or enterprise.[6]

8 The crime of false imprisonment is a continuing one. In the present case it embraced a period during which multiple charged and uncharged offences were committed. The various counts on the presentment were separate and distinct. There were no common elements or common factual matters.[7] There was no single act common to two or more of the counts.[8] Each of the offences with which the appellant was charged involved discrete conduct calling for the imposition of separate and significant punishment. As a matter of principle it would not be correct to view the conduct involved in each of the substantive counts as subsumed within the count of false imprisonment.[9]

9 An assessment of the gravity of the complainant's imprisonment required some identification of the nature of the experience to which the complainant was exposed. In the two hours of her confinement, she was subjected to a growing fear that she would not leave the appellant's premises alive. The escalation in the threats and violence over that period made her imprisonment ever more terrifying.

10 These circumstances aggravated the complainant's imprisonment and were matters which the sentencing judge properly took into account. Her Honour treated the appellant's offending conduct in relation to the other charged and uncharged acts only as a general circumstance of aggravation of the complainant's unlawful confinement. The different sentences imposed on each of the counts indicates that her Honour carefully identified the criminal conduct relating to each count and avoided any error of double punishment of the appellant for the same conduct. A comparison of the magnitude of the sentence imposed for the false imprisonment with the length of the sentences imposed for the appellant's conduct during the period of the complainant's imprisonment does not invite the conclusion that the appellant was twice punished for the same acts. The sentences imposed on the other counts and the moderate orders for cumulation that were made in relation to those sentences do not suggest that there was any double punishment with the sentence imposed on the count of false imprisonment or that the appellant was twice punished for the uncharged acts.

11 Under a separate ground of appeal the appellant alleges that the learned sentencing judge erred in failing to take into account the delay of almost three years between the commission of the offence and the date of sentence. The offences were committed on 9 July 2003 and the trial commenced on 14 March 2006. On at least one occasion, on 29 April 2005, the trial was adjourned at the request of the appellant. It was common ground between the parties that the fault for this delay lay neither with the appellant nor the prosecution. It is settled that proper sentencing principles dictate that any undue delay in the disposition of a charge should work in favour of the defendant being sentenced.[10] Counsel relied upon a number of cases in which delay had been viewed as a powerful mitigating factor.[11] Regrettably, where an accused is on bail, a delay of two years between arrest and trial is not uncommon. I do not stay to consider whether the delay here present should be viewed as inordinate as in any event it was a matter that had to be taken into account.[12]

12 It appears that in October 2004 the appellant was convicted in the Magistrates' Court on charges of possessing drugs of dependence including heroin, amphetamine, ecstasy and cannabis. He was fined $1200. The appellant was also convicted and fined in relation to two charges of resisting arrest. On the plea the sentencing judge was informed that the appellant had not used illicit drugs in the last 12 months prior to the trial and that he was now in a stable relationship. Her Honour observed that in the preceding two years the appellant had sought to overcome his drug problems and to that extent the appellant's prospects of rehabilitation had improved. Her Honour said in the course of her reasons that she took into account the matters personal to the appellant which had been addressed on the plea, having adverted to the submission made on the appellant's behalf that there had been delay and that he had good prospects for rehabilitation.

13 The sentencing judge in her reasons made explicit reference to the prosecution's submission on the plea that the appellant had failed to address the issues that led to the offending and the fact that he had failed to undergo any courses of further education, had not sought counselling in relation to anger management and had shown no remorse. Consequently it could not be said that the appellant had undergone significant rehabilitation or that the delay was of such an order as to lead to a justified sense on the part of the offender that the sentences imposed were unfair. The appellant has not established that the delay called for the imposition of a different sentence.

14 Under a further ground it was alleged that the sentencing judge placed excessive weight on general deterrence. Her Honour in her reasons stated that "expressions of violence in the context of the breakdown of relationships are a worrying social problem" and drew upon passages from the reasons for sentence in cases such as R v Gojanovic[13] and R v Monks[14] where the offender had murdered his female partner. Those passages emphasised the Court's obligation to impose a sentence that would deter those who would resort to violence to deal with problems arising from a domestic relationship. It was said that it was erroneous to refer to cases of murder in gauging the extent to which general deterrence needed to be addressed. I see no error in her Honour's approach. The violence employed by the appellant, and its apparent effect upon the complainant was of a serious order. Plainly general deterrence was an important sentencing factor in the appellant's case. The submission that her Honour fell into error in emphasising the importance of general deterrence in the manner in which she did, cannot be sustained.

15 Finally it was contended that the sentences imposed were manifestly excessive and breached the principle of totality. Counsel for the appellant appeared content to rely upon the written submissions in support of these grounds. While the outline of argument acknowledged that the appellant could not call in aid a plea of guilty or any evidence of remorse, it was submitted that the circumstances in which the offending conduct came to occur was a mitigating factor which bore upon the appellant's moral culpability.

16 It is frequently observed that the ground of manifest excess does not admit of much argument. Such a ground does not call for a determination by this Court of the sentences it would have imposed had it been in the position of the sentencing judge but rather whether the sentences were outside the range of sentences properly available to her Honour. In my view, neither the sentences imposed on each individual count or the total effective sentence or non-parole period were beyond the sentences reasonably open in all the circumstances of the case.

17 The appeal should be dismissed.

18 I agree, for the reasons given by Redlich JA, that the appeal should be dismissed.

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[1] See, for example, R v Silver & Ors [2006] VSC 154.

[2] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; R v Newman & Turnbull [1997] 1 VR 146.

[3] [1997] 1 VR 246. See also R v El-Kotob [2002] VSCA 109; (2002) 4 VR 546 at 559-560 per Vincent JA.

[4] R v Langdon and Langdon [2004] VSCA 205; (2004) 11 VR 18 at 39[117]-[118]; R v Ly [2004] VSCA 45 at [30].

[5] Pearce v The Queen (1998) 194 CLR 610 at 623-4.

[6] R v Lacey [2006] VSCA 4 [21]-[26] per Vincent JA.

[7] R v Langdon and Langdon [2004] VSCA 205; (2004) 11 VR 18 at 34-5.

[8] Compare R v Tan [2005] VSCA 54; (2005) 152 A Crim R 397 at [10].

[9] R v Lacey at [21]-[26] per Vincent JA.

[10] R v Miceli [1997] VSC 22; [1998] 4 VR 588 at 591 per Tadgell JA.

[11] R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444 at 447; R v Miceli; R v Schwabegger [1998] 4 VR 649 at 659.

[12] R v Miceli at 591.

[13] [2005] VSC 97.

[14] [2001] VSC 516.